Kent on The New Originalism and the Foreign Affairs Constitution

This symposium essay addresses how the new originalism – focused on the objective semantic meaning that the Constitution’s text would have had to hypothetical members of the adopting generation – grapples with particular interpretive issues raised in the constitutional foreign affairs area. I first suggest that new originalism struggles with background norms of the common law or the law of nations which were understood by some members of the Founding generation to implicitly qualify or restrict parts of the constitutional text. This issue is omnipresent in foreign affairs law because courts, executive officials, and other interpreters must decide whether the boundaries of the Constitution’s broadly written protections for life, liberty, and property extend to domains such as wartime or extraterritorial activity by the U.S. government, or to persons beyond the paradigm case of U.S. citizens within the United States. The Constitution’s meaning is significantly altered depending on whether unwritten general law is allowed to undercut textually broad rights. Second, I suggest that the exacting textualism practiced by many new originalists might only imperfectly understand certain aspects of the foreign affairs Constitution. This is because some of it was drafted hastily and poorly, certain important topics were not addressed at all, and some Founding-era interpreters understood the foreign affairs portions of the Constitution in a holistic manner focused on purpose and structure, instead of parsing text in the manner of new originalism. This potentially large gap between results reached by new originalism and the expectations and practices of the Founders problematizes new originalism’s claim to be based on the public meaning of the text to the adopting generation.